elements b power point slides class #10 friday, september 11, 2015

ELEMENTS B POWER POINT SLIDES

Class #10 Friday, September 11, 2015

MUSIC: Gustav Mahler, Symphony #5 (1901-02)

Vienna Philharmonic (1988)Leonard Bernstein: Conductor

Starting With: Which of These Things Which of These Things Is Not Like the Others (and Why)?Is Not Like the Others (and Why)?

LION FISH

BULL FOX

COVERAGE: CLASS #10 (Break @ 9:45)

1.1. Lawyering Exercise & Intro to Demsetz Lawyering Exercise & Intro to Demsetz (includes (includes RADIUMRADIUM: DQ1.30): DQ1.30)

2. Intro to Group Assignment #1 & Logistics

3. DQ1.23-1.25 (OXYGENOXYGEN)

4. 1902

5. End of Shaw Brief (URANIUMURANIUM)

LAWYERING EXERCISE TO SET UP DEMSETZ READING

Which of These Things Is Not Like the Others (and Why)?

LION FISH

BULL FOX


How to Decide Which Differences How to Decide Which Differences Matter?Matter?

LION (e.g., Maned; Circus Animal)LION (e.g., Maned; Circus Animal) FISH (e.g., Non-Mammal; Aquatic]

BULL [e.g., Male, Herbivore] FOX [e.g., Three Letters; One Mate for Life]


How to Decide Which Differences How to Decide Which Differences Matter?Matter?

LION (e.g., Maned; Circus Animal)LION (e.g., Maned; Circus Animal) FISH (e.g., Non-Mammal; Aquatic]

BULL [e.g., Male, Herbivore] FOX [e.g., Three Letters; One Mate for Life]

THEORY!!THEORY!!

DEMSETZ ARTICLE

DEMSETZ ARTICLE DQ1.30: RADIUMRADIUM

“In the world of Robinson Crusoe property rights play no role.”

•Who is Robinson Crusoe?

•What does quote mean?

•Why does Demsetz believe this to be true?

“In the world of Robinson Crusoe property rights play no role.”

• One definition of Property: “Legal relations between people with regard to things.”

• Helpful to think of Property not as a noun but as an adjective (like sacred or beautiful).• Some animals are Sacred; some are not. Some animals

are Property, some are not. • In different cultures, different animals get defined as

Sacred or as Property. • E.g., insects (other than bees) rarely treated as

Property

In different cultures, different animals get defined as Property.

Bombyx Moth treated as Property in China for several thousand years. Why?Why?

DEMSETZ ARTICLE IN ELEMENTS B

• Unit One-A has been about how people acquire Property rights in unowned animals.

• This is part of a broader issue: How and why do things or intangible interests change from being NOT-Property to Property .

• Demsetz provides one way to look at this issue that largely revolves around the concept of “internalizing externalities,” to which we’ll return at the end of our discussion of Shaw.


1. Lawyering Exercise & Intro to Demsetz (includes RADIUM: DQ1.30)

2.2. Intro to Group Assignment #1 & Intro to Group Assignment #1 & Logistics Logistics


4. 1902


GROUP ASSIGNMENT #1Standard Exam Task: Apply Authorities Studied to New

Hypothetical or “Fact Pattern”

•Assmt #1 : Structured Sequence of Assmt #1 : Structured Sequence of Arguments Arguments

– Specific arguments for each party from

(1A) Facts of Shaw

(1B) Specific Language from Shaw

(1C) Policy of Rewarding Useful Labor

GROUP ASSIGNMENT #1Standard Exam Task: Apply Authorities Studied to New Hypothetical or “Fact

Pattern”

•Assmt #1 : Structured Sequence of Assmt #1 : Structured Sequence of Arguments Arguments

– Three sets of specific arguments for each Three sets of specific arguments for each partyparty

– NotNot everything you could say about the everything you could say about the hypohypo

– But But together, good basis for an exam together, good basis for an exam answeranswer

GROUP ASSIGNMENT #1Two Important Skills to PracticeTwo Important Skills to Practice

1. Isolation: Focusing on One Narrow Topic at a Time

2. Dialogue: Finding Best Arguments for Each Party

ISOLATION: Focusing on One Narrow Topic at a Time

Common Idea in Many Contexts•Exercise or Massage Muscle Groups

•Football Film/Replays Individual Players

•Cooking Specific Ingredients

GROUP ASSIGNMENT #1Two Important Skills to Two Important Skills to

PracticePractice1. ISOLATION: Focus on One Narrow Topic at a Time– Read Instructions Carefully & Just Do Your Topic:

• (1A) Facts of Shaw - OROR -• (1B) Specific Language from Shaw -OR-OR-• (1C) Labor Policy

– For Examples, Look at Shack Qs/Comments/Models– Doing more than you’re asked earns penalties not

extra credit (lot of this last year)• Cf. Responding to Judges in Oral Argument• Cf. Coverage in Associate Assignments at Law Firm • Cf. Limited Scope Short Exam Q

GROUP ASSIGNMENT #1Two Important Skills to Two Important Skills to

PracticePractice2. DIALOGUE: Finding Best Arguments for

Each Party– Built into Structure of Assignment #1Built into Structure of Assignment #1– Until the Highest Court in a Jurisdiction Until the Highest Court in a Jurisdiction

Decides an Open QDecides an Open Q• No “Right” AnswerNo “Right” Answer• Just Best Available Arguments Just Best Available Arguments

– Good Exam Answers Reflect This & Good Exam Answers Reflect This & Often Sound Like Schizophrenic Often Sound Like Schizophrenic MonologuesMonologues

DIALOGUE: Finding Best Arguments for Each Party

Legal Smeagols

GROUP ASSIGNMENT #1Some General PointsSome General Points

1. Carefully Follow Formatting & Substantive Directions

2. Special Problems of Tie-Breaker Qs3. Working Together– Take Advantage of Multiple Perspectives– Keep Each Other on Track– Be Cooperative

QUESTIONS?

LOGISTICS: CLASS #10• Monday/Tuesday: – No Class or Office Hours– DF Session at Regular Time Monday

• Wednesday: • We’ll begin with Introduction to Escape & DQs 1.41-

1.42 (Uranium)• Then pick up with end of Shaw & Demsetz material

wherever we leave off today.

STATE v. SHAW DQ1.28: Krypton

“E-Participation”“E-Participation”Calles Smith, Castillo, Karlin, Phillips

E-mail to me today by 7:00 pm: •A clear statement of the Rule you derived for DQ1.28 (Not your defense of the Rule)•Use name, not pseudonym•No need for any particular formatting

We’ll go over next class.Qs at break, after class, or by e-mail.

STATE v. SHAW SIGNIFICANT FACTS

• Significant Facts (from Wednesday):• Third parties put nets in public waters to catch fish.• Some fish that got into the nets could escape, but “under

ordinary circumstances, few, if any, fish escape.” (p.29)• Thomas and others (Ds) removed fish from the nets.

• Briefing Notes:• Include Info Relevant to Appellate Court’s Discussion

(Not Necessarily Same as info Relevant to Trial)• Might Include Info Buried in Analysis Section of Opinion• Helpful to Lay Out in Chronological Order

Common Sense When Reading

Shaw: “[T]he defendant, John Thomas, said that ‘they lifted two pound nets west of the pier and got the fish.’”

Did they take the nets?


Shaw: Did Ds take the nets?• Logistically Unlikely– Net is 28’ x 28’ x 35’– They’re in a Sailboat


Shaw: Did Ds take the nets?•Logistically Unlikely•Inconsistent w Opinion– No Discussion of Value of Net– Whole Opinion About Fish– Easy Larceny Case if they Took Nets




3.3. DQ1.23-1.25 (DQ1.23-1.25 (OXYGENOXYGEN))4. 1902


DQ1.23-1.25 Apply Apply Pierson Pierson & & LiesnerLiesner

to Perfect Net Rule to Perfect Net Rule & to Specific & to Specific ShawShaw Facts Facts

OxygenOxygen(Like a Breath of Fresh

Air)

DQ1.23-1.25: Apply Apply Pierson Pierson & & LiesnerLiesner to Perfect Net to Perfect Net RuleRule & to Specific & to Specific ShawShaw

FactsFacts

Like Many Fish, We’ll Start with FryLike Many Fish, We’ll Start with Fry

(Sadly, Some Fish Also End with Fry)(Sadly, Some Fish Also End with Fry)

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Oxygen)Language from Pierson

•State would begin by arguing that Pierson says that “nets and toils [= traps]” create property in animals for those that use “such means” to catch animals.•In reply, defendants would point to the specific language of the relevant passage in the majority opinion (see next slide).


(Oxygen)Pierson Language re Traps:

“[E]ncompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossiblerender escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”


(Oxygen)Language from Pierson

Passage about traps seems to require that they “render escape impossible,” supporting Trial Court’s adoption of the Perfect Net Rule.

Ways Around?


(Oxygen)Language from Pierson:

Ways around “render escape impossible”?

•Dicta (traps not part of original case) and inconsistent with explicit concerns with certainty and labor (see below).•Phrase might refer just to “otherwise intercepting” and not to “nets and toils” (although commas suggest otherwise)


(Oxygen)Pierson Language re Traps (Note Commas):

“[E]ncompassing and securing such animals with nets and toils,, or otherwise intercepting them in such a manner as to deprive them of their natural liberty,, and render escape impossible,, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”


(Oxygen)Language from Pierson: Ways around “render

escape impossible”?

Distinguish traps for individual animals from traps for groups of

animals (like fish nets).


(Oxygen)Pierson Language re Mortal Wounding

“[M]ortal wounding … by one not abandoning his pursuit, may … be deemed possession of [the animal]; since, thereby, the pursuer

[i] manifests an unequivocal intention of appropriating the animal to his individual use, [ii] has deprived him of his natural liberty, and [iii] brought him within his certain control.


(Oxygen)Language from Pierson: Property where claimant…

[i] manifests an unequivocal intention of appropriating the animal to his individual use,•Big constructed nets at issue surely do this

[ii] has deprived him of his natural liberty, and •Can argue about this; probably true for most fish so long as they’re in the nets

[iii] brought him within his certain control.•Not true of any one fish; true of fish as a group


(Oxygen)

Policies from Pierson: Rewarding Labor?


(Oxygen)Policies from Pierson: Rewarding Labor

•Point of net is to catch fish which have value to society.•Net serves this purpose & is valuable even if not perfect•Net that retains most of the fish it catches should thus be rewarded•If net needs to be perfect to be protected against theft, industry might well shut down.


(Oxygen)Policies from Pierson: Certainty

•Perfect Net Rule (like too-absolute versions of rules in Liesner) creates uncertainty b/c too difficult for net-owners to meet test:• Virtually impossible to create escape-proof net (by

definition, net has net has %*#*@^&% holes in it!) holes in it!)• Even if net initially is escape-proof for fish of certain

size, wear-and-tear would change this in time• Difficult to show test met, and becomes harder as

time goes on

DQ1.24 Apply Pierson Dissent to Shaw Facts & Perfect Net Rule

(Oxygen)

Arguments from Pierson Dissent?

DQ1.24 Apply Pierson Dissent to Shaw Facts & Perfect Net Rule (Oxygen)

Arguments from Pierson Dissent•Would seem to meet language (p.6):

i) Pursuer w/in reach or reasonable prospect of taking +ii) Intent to convert to own use

•Even imperfect net is more control/certainty than most forms of “hot pursuit” so dissent would likely say it is enough to create property rights.•If you look to customs of fisherman, likely to find that fish in nets are considered property of net-owners. •Possible Counter [Pijls; I Need to Think About More]: Want More Generous-to-Hunter Rule to Ensure Elimination of Pest Animal; Certainly Unneeded for Hunting-for-Sport; Maybe Unneeded for Food Animals

DQ1.24:Ways to Use Arguments from Dissents:

• If Case in Different Jurisdiction: • Majority not Binding on Court in Question• Dissent can be Persuasive Authority (“We find the

dissent’s position more persuasive because …”)

• Note that Pierson Dissent position seems inconsistent with rules stated in Liesner and Shaw as well, which weakens its overall persuasiveness.


(Where Majority Opinion is Binding):•Can Help Show Meaning of Majority Opinion: “The majority must have rejected the dissent’s argument that hunter’s customs should be consulted.”)•Can Show General Relevance of a Policy Argument: “Judges may be concerned about the effects of their holdings on people’s behavior. See Pierson Dissent (suggesting Majority’s rule will deter useful hunting).”


QUESTIONS?

STATE v. SHAW DQ1.25: Oxygen

Applying Liesner Tests to Shaw FactsPrimarily Leave to You & DF Sessions

Next Three Slides (Not Shown in Class) are Partial Examples

STATE v. SHAW DQ1.25

Applying Liesner Tests to Shaw FactsSubstantially permanently deprived of liberty?•Can’t say for sure that any particular fish is permanently deprived of liberty•Maybe “substantially permanently”, because very high likelihood for particular fish•Maybe meet test b/c substantial # of fish permanently deprived


Applying Liesner Tests to Shaw FactsEscape Highly Improbable?

•Court seems to say so. •May depend on frequency of storms or other events outside “ordinary circumstances.”•Leave further arguments to you.


Applying Liesner Tests to Shaw FactsUnder control so possession is practically

inevitable?•Fair to describe fish as “under control”? •Is possession “practically inevitable”?





4. 1902: Context of Shaw5. End of Shaw Brief (URANIUMURANIUM)

STATE v. SHAW Context: 1902International

•Cuba gains independence from Spain•China's Last Empress (Tzu-Hsi) forbids binding of woman's feet•Edward VII (60) becomes King of England • Victoria reigned 63+ years before her death in

1901 (Elizabeth surpassed this week)• Cf. Prince Charles will turn 67 in November

•Boer War Ends; Britain annexes Transvaal

STATE v. SHAW Context: 1902

United States: • Teddy Roosevelt becomes 1st Am. President to ride in an

automobile • US buys Virgin Islands from Denmark & right to build

Panama Canal from French • Oliver Wendell Holmes, Jr. (Civil War veteran & Justice on

Mass. Supr. Ct.) becomes Associate Justice on US Supr. Ct.

STATE v. SHAW Context: 1902Deaths

•Thomas Nast (cartoonist); Cecil Rhodes (explorer); Elizabeth Cady Stanton (feminist); Emile Zola (novelist)

Births •Charles Lindbergh (Aviator) & Ansel Adams (Photographer)•Meyer Lansky & Carlo Gambino (Both Organized Crime)•Richard Daley (Chi. Mayor 1968) & Thomas Dewey (ran for pres. 1948) & Strom Thurmond (ran for pres. 1948, d. 2003) •Richard Rodgers, Guy Lombardo, John Steinbeck & Langston Hughes •John Houseman (Paper Chase) & Margaret Hamilton (Wicked Witch)•Ray Kroc (McDonald’s) & Ayatollah Ruhollah Musavi Khomeini (Iran)

STATE v. SHAW Context: 1902Introduced:

•American Automobile Assn.•1st Automat Restaurant in Philadelphia•"Bill Bailey Won't You Please Come Home" • "The Entertainer"•JC Penney 1st Store (in Wyoming) •London School of Economics•Marlboro•1st Movie Theater•Neon Lamps•Phi Alpha Delta

STATE v. SHAW Context: 1902Introduced:

•"Pomp and Circumstance" •RadiumRadium isolated by Pierre & Marie Curie•Rhodes Scholarships•Rose Bowl (1st College Bowl Game; Michigan 49, Stanford 0 )•Smith & Wesson .38 Caliber Special •Texaco•The Thinker by Rodin•Tinker, Evers, and Chance (Chicago Cubs Infielders)•US Census Bureau•Window Envelopes

Finishing UpSTATE v. SHAW

Brief

with Uranium

STATE v. SHAW BriefISSUE (from Friday):

Did the trial court err in directing a verdict for the defendant on the grounds that

defendant did not commit grand larceny because net-owners do not have property rights in fish found in their nets where the

fish can escape from the nets?

STATE v. SHAW BriefNarrow Holding: YES. The trial court erred in directing a verdict for the defendant on

the grounds that defendant did not commit grand larceny because net-

owners can have property rights in fish found in their nets even if some fish can

escape from the nets.

STATE v. SHAW BriefResult:

Reversed & Remanded For New Trial(Thomas Could Still Prove He Didn’t Commit Crime Even if

Fish Belonged to Net-Owners)

•On remand, trial court will have to instruct jury about when net creates property rights in fish for net-owners• Can’t simply say “Net doesn’t have to be perfect.”• Broader version(s) of holding needed for this.

STATE v. SHAW Brief• On remand, trial court will have to instruct jury

about when net creates property rights in fish. • Broader version(s) of holding needed. Possible

Rules/Holdings:1. Any Net is OK? (Raggedy Volleyball Net??)

STATE v. SHAW Brief• On remand, trial court will have to instruct jury

about when net creates property rights in fish. • Broader version(s) of holding needed. Possible

Rules/Holdings?1. Any Net is OK? 2. Look to language in case: Two plausible rules (long

para. pp.28-29), either of which could be incorporated into broader version of holding.

STATE v. SHAW BriefTwo Plausible Rules (long para. pp.28-29)

1.To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.

2.When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure … will be larceny.

STATE v. SHAW BriefFirst Plausible Rule (bottom of p.28)

““[T]he pursuer must …[T]he pursuer must …

[i] bring them into his power and [i] bring them into his power and controlcontrol, and …, and …

[ii] so maintain his control as to show [ii] so maintain his control as to show that he does not intend to abandon them that he does not intend to abandon them again to the world at large.”again to the world at large.”

•Note two parts/requirements •Note showing intent is not a separate requirement (and is not sufficient by itself), but instead is part of the requirement of maintaining control

STATE v. SHAW BriefSecond Plausible Rule (pp.28-29)

The trapper acquires property in wild animals “[w]hen …

[i] he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and …

[ii] maintains reasonable precautions to prevent escape….”

•Again, two parts/requirements•Slightly different language you can use; we’ll mostly focus in class on 1st Plausible Rule

STATE v. SHAW BriefNote on Interpreting Legal Tests

in Context of Cases•Because Ohio SCt reversed the trial court, should assume that it believes net-owners met its tests.• E.g., fish caught in nets have been brought within net-

owner’s “power and control.”• E.g., set up of these nets = “reasonable precautions to

prevent escape.”

•Thus, can use facts of Shaw to help explain what the tests mean going forward.

elements b power point slides class #10 friday, september 11, 2015

Documents

definition of property

demsetz readinghow

demsetz readingwhich

different animals

lawyering exercise intro

logistics dq1

sets of specific arguments

lion fish bull fox coverage